Professor Hugh Corder, Law Faculty dean at the University of Cape Town, outlined the major aspects of their report to the committee:
the definition of "oversight" and "accountability" in relation to the role of the National Assembly and the National Council of Provinces
the current procedure for dealing with reports submitted to Parliament and its problems recommendations for the content of these reports and the manner in which these reports must be dealt with upon receipt by Parliament an analysis of how Parliament can hold the constitutional institutions accountable and, at the same time, respect their independence.
He noted that some of the constitutional institutions had requested the team to include in their report an outline of what their annual report to Parliament should contain. Submissions had been received from these bodies which the team had considered in drawing up an outline of the content of these reports.
The team's report recommends establishing a parliamentary Standing Committee on Constitutional Institutions and proposes two pieces of legislation in order to iron out certain problems:
(a) The proposed Accountability Standards Act to establish: accountability mechanisms, the minimum requirements for accountability and a framework within which committee members can perform their oversight task. This Act would complement the Public Finance Management Act
(b) The proposed Accountability and Independence of Constitutional Institutions Act which would ensure that these institutions are financially and administratively independent. In order to give effect to this, this Act should make provision that the budget of these institutions are not linked to the budget of a government ministry. Accountability would be enhanced with the establishment of a Standing Committee on Constitutional Institutions.
Ms Saras Jagwanth, also from UCT Law Faculty, spoke on the oversight role of the National Council of Provinces. She pointed out that the provisions of the Constitution require the National Assembly to perform oversight but there are no explicit constitutional provisions which require the National Council of Provinces to do so. However it is clear from provisions such as ss 66(2) and 92 of the Constitution that the NCOP must exercise oversight. The NCOP does not oversee all of national government but is expected to exercise oversight over the national aspects of provincial and local government. Due to the fact that the oversight function of the NCOP and National Assembly differs, the team recommends the establishment of the Central Receiving Office - the task of which will be to receive and index all reports received by Parliament and assign them to the relevant committee.
Questions from the members
The Chairperson asked whether "oversight" and "accountability" do not have same meaning.
Ms Jagwanth responded that accountability requires the reporting body to rectify the wrong which had been identified. The Constitution further separates the notion of accountability from oversight. The term "oversight" means a broad flexible activity of legislature which is far broader than accountability. Professor Corder commented that accountability now is not the same as accountability before 1994. Then it referred only to financial accountability but now it means accountability in the wide sense: openness as well as responsiveness where the executive must account on a wide range of issues and may be called to justify its actions.
Mr F Cassim (IFP) said that that section 55 (2) of the Constitution states that the National Assembly must provide for mechanisms to ensure executive organs are accountable and to maintain oversight of these organs. The provision deals adequately with mechanisms when Parliament is in session but there are not adequate mechanisms when it is not in session.
Ms Jagwanth said that there is a constitutional obligation on the National Assembly to put mechanisms into place and that is the reason why the team recommends the Accountability Standard Act. When the house is not in session, the committee can be called to sit. There are other mechanisms which can be exercised by the committees.
A committee member commented that ministerial accountability is now being stressed and civil servants can be held responsible for what goes wrong in their department. He asked whether the report was written before the Public Finance Management Act was passed.
Mr Fred Soltau, also from UCT Law Faculty, responded that civil servants are held accountable for administrative wrongs and they are not answerable to political questions. The Public Finance Management Act was passed at the time they were preparing the report.
Mr Cassim (IFP) put it to the team that the Public Protector and other institutions complain that their reports are not dealt with by Parliament. The Chairperson responded that that is the reason why this team is proposing a specific committee to deal with those reports.
The Chairperson asked the meeting to provide a way forward. Ms D Smuts (DP) proposed that the committee should go ahead with proposed legislation. Mr Cassim (IFP) proposed that the report be dealt with in the same way as they do when they are considering legislation. The Speaker proposed that political parties should be give an opportunity to look at the report and then the report should go to the Rules Committee to be discussed. Ms P de Lille supported the Speaker's proposal and further requested that the public should have an input.
The Chairperson ruled that the report should go to the parties for discussion and later it would come before the Rules Committee.
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